We're 4-4-1 and split down the middle as to which way that "1" should go.
I refer to the U.S. Supreme Court. I also refer to the country at large, invoking the Supreme Court as microcosm, or metaphor, or symptom, or, in truth, the ballgame.
The big decisions don't get made in the White House or the U.S. Capitol, for which we can be thankful. They get made by 5-4 one way or the other in the Supreme Court building, a kind of secular Vatican from which white smoke will tell us who'll be the president (George W. Bush), and whether women may have abortions (yes, but fewer with every erosive ruling) and whether a president may discriminate against Muslims in what once was a free-religion country (yes, because he's the president for worse or worse).
Decisions don't get made by the people either. Don't fall for that old democracy fairy tale.
The Electoral College installed the current banner of Muslims though he got nearly 3 million fewer votes than his opponent. This very Supreme Court--the same institution, if not the same nine--ruled that officials had to stop counting actual people's votes in Florida and just let George W. Bush take the presidency in 2001, also with fewer popular votes than his opponent got.
It was tidier that way. The people in south Florida couldn't figure out how to do a chad.
The day we tell the U.S. Supreme Court to shove a ruling is the day we begin a constitutional crisis. Being dysfunctional at 4-4-1 is better. That's how bad a constitutional crisis would be.
Think about it, though, merely for context: Twice already in this young century, pivotal nominations for the U.S. Supreme Court have been made by presidents who finished second in the popular voting.
Then those justices have decided everything by 4-4-1 with the one vote varying first one way and then the other, always in the person of either the chief justice, John Roberts, or the last moderate Republican, Anthony Kennedy, who announced Wednesday his intention to retire, leaving Roberts sole responsibility for the "1" that swings.
On occasion, one of those has pulled a switcheroo if he thought the other Republican justices--sullen Clarence Thomas, scowling Samuel Alito and oddball Neil Gorsuch, last observed writing a dissent that made scarce sense--would make a mess of things.
Here's how the Supreme Court came to its current 4-4-1 condition: Justice Antonin Scalia died unexpectedly about nine months before the last presidential election. There was an allegation from the right wing that Democrats had killed him, but that accusation never much took off.
A Democratic president, Barack Obama, had the right and responsibility to nominate a replacement, which he did, in the person of a moderate named Merrick Garland. But the Republican-controlled Senate, with the right and responsibility to consider nominations, declined even to hold hearings, explaining that, considering the circumstances, it would be best to wait and see who would win the presidency in a short nine months.
Obama had full authority to execute the nomination. The Republican Senate had full authority to consider it. Or not.
Be aware that Republicans controlled the Senate only because all states get two senators, and barren conservative lands like Wyoming and Montana install as many senators as places where people outnumber elk.
Then Republican Donald Trump received 3 million fewer popular votes than Hillary Clinton, yet still got to make the nomination that had been Obama's to make nine months previously.
Last week, this new court voted 5-4 to require a warrant before law enforcement may collect your location data from your phone. Chief Justice Roberts switched over to the Democrats to make a highly appreciated ruling for personal privacy.
Gorsuch, the guy wearing Garland's robe, wrote a dissent, sort of, that seemed to say we ought to turn over the Fourth Amendment's protection against unreasonable search and seizure to state legislatures.
This week the Supreme Court ruled 5-to-4 that Trump could lawfully impose that ban on travel to the U.S. from certain Muslim-majority countries.
The intact Republican contingent said it might be that Trump had expressed a religious bias, but ... so what?
Democratic associate justice Sonia Sotomayor issued a passionate dissent quoting Trump's anti-Muslim statements and comparing the Muslim ban to the internment of Japanese-Americans during World War II.
Chief Roberts, writing the majority opinion, said he was glad Sotomayor mentioned that because it gave him the opportunity to write in behalf of the court that the Supreme Court decision allowing the Japanese-American roundup was horribly wrong.
I take some solace in that--in knowing we've had lame Supreme Courts and done horrible things before and survived to take them back in 75 years or so.
P.S. If the Democrats could take the Senate in November, which is highly unlikely, they could, by recent precedent, one supposes, keep Kennedy unreplaced until the next presidential election.
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John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, is a member of the Arkansas Writers' Hall of Fame. Email him at [email protected]. Read his @johnbrummett Twitter feed.
Editorial on 06/28/2018